Citation Nr: 18156289 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-51 121 DATE: December 11, 2018 ORDER Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The evidence of record indicates that the Veteran’s PTSD did not result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. The most competent, credible, and probative evidence of record demonstrates that the Veteran’s service-connected disabilities, alone, are not of such nature or severity as to prevent him from securing or following any substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active military service from June 28, 2006 to January 8, 2010. The Veteran also had active military service from January 9, 2010 to September 27, 2011 that is dishonorable for VA purposes. This matter is on appeal from July 2012 and December 2012 rating decisions. 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. This matter is on appeal from an July 2012 rating decision, which granted service connection for PTSD and assigned an initial evaluation of 50 percent, effective October 18, 2011. A December 2012 rating decision corrected the effective date by assigning an effective date of October 14, 2011. The Veteran disagrees with the initial rating assigned. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Posttraumatic Stress Disorder The Veteran’s PTSD has been rated under Diagnostic Code 9411, which is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Rating Formula for Mental Disorders, a 50 percent rating requires occupational and social impairment, but with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete task); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for even greater occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran’s psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency must assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When rating the level of disability from a mental disorder, the rating agency must consider the extent of social impairment, but cannot assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126. The Veteran’s actual symptomatology, and resulting social and occupational impairment, will be the primary focus when assigning a disability rating for a mental disorder, and the Veteran may qualify for a particular rating by demonstrating the particular symptoms associated with that percentage, or other symptoms of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). As explained below, the competent evidence of record, to include the Veteran’s treatment records, VA examination reports, and lay statements, do not establish findings consistent with higher ratings. In May 2012, the Veteran was afforded a PTSD VA examination. Based on the clinical evaluation, the examiner diagnosed the Veteran with PTSD under DSM-IV criteria, and opined that he has symptoms resulting in “[o]ccupational and social impairment with reduced reliability and productivity.” The examiner also diagnosed the Veteran with depressive disorder NOS and alcohol dependence and found that it was not possible to differentiate what portion of the occupational and social impairment is attributable to each diagnosis. She explained that the Veteran’s chronic anxiety, mood dysphoria, and substance abuse have been continuous, biologically and behaviorally interactive. The Veteran reported that he worked at a bar three nights a week and attended an online school on a full-time basis. The examiner reported that the Veteran exhibited the following symptoms for VA rating purposes: depressed mood; anxiety; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; and intermittent inability to perform activities or daily living, including maintenance of minimal personal hygiene. An August 2013 VA treatment note documenting a telephone conversation with the Veteran reported that the Veteran had not been attending counseling due to a lack of free time. He stated that he attended classes every day from noon to five-thirty. The provider reported that the Veteran’s thought process was logical and goal directed and that no suicidal or homicidal ideation was reported. An April 2014 VA treatment note reported that the Veteran had been treated sporadically since he was first seen by the treating health care provider in February 2013 due to his work schedule and school schedule. The Veteran worked as a welder in a shipyard in Miami three out of four weeks each month. The Veteran reported improved sleep and a much lower likelihood of loss of control of his temper. The health care provider reported that there had never been a concern regarding the potential for self-harm or thoughts of suicide for the Veteran and that the suicide risk for him remained low. A July 2014 VA psychiatry assessment note reported that the Veteran exhibited anger, irritability, poor sleep, and hypervigilance, and denied suicidal or homicidal ideation. He reported that he had been living in Miami for the past eight months for work. The examiner reported that the Veteran had leisure activities/hobbies that promote feelings of comfort, self-esteem, and satisfaction, and that he had a strong support system. The Veteran reported being able to sleep four to five hours each night without awakening and had a stable mood, good insight and judgment, and effective coping skills. A November 2014 VA nursing assessment note reported that the Veteran was separated from his wife for about a month as the couple had been having marital issues. The Veteran reported, “I’ve been destructive, drinking and not giving a shit about anything.” The Veteran admitted to suicidal thoughts earlier in the day, but denied such thoughts at the time of the visit. He stated that it was the third time that week that he had suicidal thoughts and that his wife had called the police due to the Veteran talking about suicide. A March 2015 VA treatment record reported that the Veteran had completed treatment at the Palm Harbor Veterans Center and doing well. The Veteran declined any further services with the stress treatment program at that time. The record indicated that the Veteran does not appear to be in imminent danger of harming self or others at that time and that his risk level remained low. In October 2016, the Veteran submitted a VA Form 9 in which he reported that he had attempted suicide three times since leaving active duty service. He also reported that he had a difficult time maintaining relationships with close childhood friends as well as significant others. A November 2017 VA mental health note reported that the Veteran worked approximately 50 to 60 hours each week, which he found to be helpful as a means of distraction. He lived alone and confirmed that he was doing well. A November 2017 VA primary care note reported that the Veteran had been working as an underwater mechanic for the last two years and reported no problems doing his work. He reported that he has never been on any treatment. He also reported that he enjoys his work and is not feeling depressed or suicidal. According to the Veteran, he was admitted to a treatment facility overnight to treat his depression in 2014 but has not been on treatment since that time and was doing well. A September 2016 VA record documented that a PTSD VA examination that was scheduled for the Veteran on September 3, 2016 was cancelled due to the Veteran’s failure to respond to a phone call and letter notifying him of the examination. Upon review of the evidence, the Board finds that the preponderance of the evidence is against a finding of entitlement to an evaluation exceeding 50 percent at any time during the appeal period. As chronicled above, the Veteran clearly experienced psychiatric symptomatology as a result of his PTSD with symptoms such as anger, irritability, hypervigilance, and sleep disturbance. However, the objective evidence of record does not establish that his PTSD was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood. In support of such finding, the Board assigns great probative value to the May 2012 VA medical opinion of record. The VA examiner, a licensed psychologist, thoroughly reviewed the Veteran’s mental history and diagnosed the Veteran with PTSD under DSM-IV criteria, and opined that he has symptoms resulting in “[o]ccupational and social impairment with reduced reliability and productivity.” The examiner also diagnosed the Veteran with depressive disorder NOS and alcohol dependence and found that it was not possible to differentiate what portion of the occupational and social impairment is attributable to each diagnosis. The examiner found that the Veteran exhibited impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; and intermittent inability to perform activities or daily living. Nevertheless, the Veteran reported at the time of the examination that he worked at a bar three nights a week and attended an online school on a full-time basis. Furthermore, the evidence reflects that after completing online schooling, the Veteran has been steadily employed on a full-time basis for much of the period on appeal. Additionally, the Board has taken into consideration the frequency, severity, and duration of the Veteran’s symptoms of PTSD, as well as his statements regarding his assessment of the severity of his symptoms. However, the symptoms presented here, and their resulting effects, do not rise to the level of the next higher ratings. The Veteran has consistently exhibited logical and goal directed thought structure with affective range and reactivity within normal limits, while showing no indications of significant psychomotor agitation or slowing. Furthermore, he has consistently denied current or recent thoughts about harming others and has exhibited no indications of delusional thought content. While the Board notes the Veteran’s report in October 2016 that he had attempted suicide three times since leaving active duty service, the record reflects that he consistently denied suicidal ideation except for a period around November 2014 when he was having marital difficulties with his wife. Clearly, such findings are not consistent with a higher 70 percent rating, which requires such symptoms as suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. For these reasons, the Board finds that the Veteran’s PTSD has not been manifested by symptomatology more nearly approximating the criteria for a 70 percent disability rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. The benefit-of-the-doubt doctrine is not for application, and an increased rating under this code is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. In June 2013, the Veteran submitted a Notice of Disagreement in which he expressed that, since his discharge from service, he had been unable to hold steady employment due to the effects of his PTSD. An August 2016 deferred rating decision reported that the Regional Office inferred the Veteran’s statement as a claim for TDIU and directed that he be sent a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. A September 2016 rating decision denied the Veteran’s claim for entitlement to TDIU. The September 2016 rating decision explained that, on August 22, 2016, the Regional Office wrote the Veteran and asked him to submit a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The SOC also reported that a completed VA Form 21-8940, a form required to further consider the Veteran’s claim, had not been received. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In this case, the Veteran does not meet the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). The Veteran is currently service-connected for PTSD rated at 50 percent, bilateral tinnitus rated at 10 percent, and bilateral hearing loss rated at 0 percent for a combined evaluation of 60 percent from October 14, 2011. Therefore, the Veteran does not have either a single disability rating of 60 percent or a combined rating of at least 70 percent with at least one disability rated at 40 percent so as to meet the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a). As the Veteran does not meet the applicable percentage standards, the Board must consider whether the Veteran is nevertheless unable to secure or follow a substantially gainful occupation as a result of his service connected PTSD. See 38 C.F.R. § 4.16(b). As explained below, the Board finds that the competent evidence of record does not show that the Veteran is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. In May 2012, a VA examiner opined that the Veteran’s PTSD symptoms resulted in “occupational and social impairment with reduced reliability and productivity.” The examiner reported that it appeared the Veteran’s dysphoric mood, irritability, difficulty with interpersonal interactions, and working with others resulted in distress. However, she also reported that he worked at a bar three nights each week and attended an online school on a full-time basis. An August 2013 VA treatment note reported that the Veteran attended classes every day from noon to five-thirty. An April 2014 VA treatment note reported that the Veteran worked as a welder in a shipyard in Miami three weeks each month. A July 2014 VA psychiatry assessment note reported that the Veteran had been living in Miami for the past eight months for work. A November 2017 VA mental health note reported that the Veteran worked approximately 50-60 hours each week. A November 2017 VA primary care note reported that the Veteran had been working as an underwater mechanic for the last two years and had no problems doing this work. He also reported that he enjoys his work and was not feeling depressed or suicidal. According to the Veteran, he was treated for depression in 2014, in which he was admitted overnight to a facility but had not been on treatment since that time and was doing well. As previously described, the Veteran failed to submit a completed VA Form 21-8940, a form required to obtain critical information needed to properly adjudicate his claim for a TDIU. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran is rendered unemployable due to his service-connected disabilities. In this regard, the evidence reflects that after completing online schooling, the Veteran has been steadily employed on a full-time basis for much of the period on appeal. While the Board does not doubt that the Veteran’s service-connected disabilities had some impact on his employability, there is simply no evidence of record making it factually ascertainable that the Veteran’s service-connected disabilities alone rendered him unemployable at any time during the relevant appeal period. Accordingly, the preponderance of the evidence is against the assignment of a TDIU; therefore, referral of the TDIU issue for extraschedular consideration is not warranted and the claim must be denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Moore, Associate Counsel